This post was originally published on Legal Planet and was co-authored with Professor Farber's colleague Eric Biber. Reprinted with permission. Click to read the second, third, and fourth posts in this series.
In what could turn out to be another loss for environmental protection in the Supreme Court, the Court is about to decide a major case about the scope of the National Environmental Policy Act of 1969 (NEPA). The case, Seven County Infrastructure Coalition v. Eagle County, has important implications for issues such as whether NEPA covers climate change impacts. The same groups that succeeded in drastically cutting back on federal wetlands jurisdiction a few years ago are hoping to do the same thing to environmental impact statements. Today’s post will provide the key background on the case. My colleagues and I will be following up with some more analytical posts. Our arguments are developed in greater depth in a new working paper.
The case before the Court is about federal approval of a new rail line. The 80-mile stretch of track in question would connect the Uinta Basin with the national rail network. The main purpose is to provide a way to get a lot more oil and possibly some minerals to market. The Basin’s oil production would represent up to 0.8% of U.S. greenhouse gas emissions and 0.1% of global emissions. That may not sound like a lot, but it translates into about 30 million tons of carbon a year.
The federal Surface Transportation Board used a streamlined procedure to approve the construction of the line. The D.C. Circuit held that the Board’s environmental impact statement had two serious flows.
First, the D.C. Circuit said, the Board failed to consider “downstream” effects such as the impact of increased oil production on communities living near refineries in Texas and Louisiana. This issue involves important questions of environmental justice, given that many of those communities are already overburdened with pollution. According to the lower court, the Board also bungled its analysis of the accident risks downline from all the extra rail traffic, including possible wildfires or oil spills from accidents.
Second, as to “upstream” effects in the Basin, the Board limited its consideration of ecological impacts to the area within several hundred feet of the rail line. The D.C. Circuit faulted the Board for ignoring major impacts on the Basin from oil well and road construction, drilling, and truck traffic. After all, the whole purpose of the line was to foster expanded oil production. The Board contended, however, that the number and location of wells was “simply unknown and unknowable,” so the general environmental impact on the Basin was just off the table.
The Seven Counties group that had applied for approval of the new rail line filed a cert. petition requesting Supreme Court review. They asked the Court to consider the following question: “Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority” The impacts cited by the petition were “the local effects of oil wells and refineries that lie outside the Board’s regulatory authority.”
It was a surprise that the Supreme Court agreed to hear the case. The facts are quite unusual. In addition, the impact statement was governed by the 1970 version of NEPA and the 1978 White House NEPA regulations. Neither of those is in effect today. Thus, the relevance of any ruling to future agency actions is unclear. As we will discuss in our next post, the Seven Counties group and their supporters hope to use the case to free agencies from having to consider important environmental impacts.
Given that the Court did agree to hear the case, it’s quite likely that at least some of the justices share that view.
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Daniel Farber | November 12, 2024
In what could turn out to be another loss for environmental protection in the Supreme Court, the Court is about to decide a major case about the scope of the National Environmental Policy Act of 1969 (NEPA). The case, Seven County Infrastructure Coalition v. Eagle County, has important implications for issues such as whether NEPA covers climate change impacts. The same groups that succeeded in drastically cutting back on federal wetlands jurisdiction a few years ago are hoping to do the same thing to environmental impact statements. This post will provide the key background on the case.
Sophie Loeb | November 7, 2024
On November 1, the North Carolina Utilities Commission issued its carbon plan order, two months in advance of the filing deadline. The order reflects an earlier settlement agreement among the Public Staff, Duke Energy, and Walmart that allows Duke Energy to build four new methane gas units while marginally increasing the amount of solar, battery storage, and wind resources in its proposed carbon reduction plan. Critically, the selected plan (known as Portfolio 3) fails to meet the 2030 interim carbon reduction timeline in House Bill 951 — the state’s carbon reduction law — and likely delays compliance to 2035.
Jose Coronado-Flores | October 31, 2024
Latino and Hispanic people have played a significant role in struggles for racial, economic, and climate justice. In observance of Hispanic Heritage Month, our Senior Policy Analyst for Climate Justice, Catalina Gonzalez, reached out to several Latino advocates and organizers working on the frontlines of climate justice campaigns. Today, we are sharing a response from Jose Coronado-Flores of CASA of Maryland.
Amy Tamayo | October 30, 2024
Latino and Hispanic people have played a significant role in struggles for racial, economic, and climate justice. In observance of Hispanic Heritage Month, our Senior Policy Analyst for Climate Justice, Catalina Gonzalez, reached out to several Latino advocates and organizers working on the frontlines of climate justice campaigns. Today, we are sharing a response from Amy Tamayo of Alianza de Mujeres Campesinas.
James Goodwin | October 29, 2024
Pending House spending bills confirm that conservative members of Congress are all in on Project 2025. Specifically, I reviewed the nearly 500 “poison pill riders” that have been crammed into those measures, and I found over 300 that were aimed at advancing specific recommendations contained in Project 2025’s comprehensive policy blueprint.
Jenny Hernandez | October 29, 2024
Latino and Hispanic people have played a significant role in struggles for racial, economic, and climate justice. In observance of Hispanic Heritage Month, our Senior Policy Analyst for Climate Justice, Catalina Gonzalez, reached out to several Latino advocates and organizers working on the frontlines of climate justice campaigns. Today, we are sharing a response from Jenny Hernandez of GreenLatinos.
Catalina Gonzalez | October 28, 2024
To recognize Hispanic Heritage Month this year, the Center for Progressive Reform asked Latino leaders in the environmental justice and climate movement to share personal reflections about their heritage and their work on a wide range of cross-cutting, intersectional issues that disproportionately affect Hispanic and Latino populations.
Daniel Farber | October 24, 2024
The Project 2025 report is 920 pages long, but only a few portions have gotten much public attention. The report’s significance is precisely that it goes beyond a few headline proposals to set a comprehensive agenda for a second Trump administration. There are dozens of significant proposals relating to energy and the environment. Although I can’t talk about all of them here, I want to flag a few of these sleeper provisions. They involve reduced protection for endangered species, eliminating energy efficiency rules, blocking new transmission lines, changing electricity regulation to favor fossil fuels, weakening air pollution rules, and encouraging sale of gas guzzlers.
Robin Kundis Craig | October 15, 2024
The U.S. Supreme Court will test how flexible the EPA and states can be in regulating water pollution under the Clean Water Act when it hears oral argument in City and County of San Francisco v. Environmental Protection Agency on October 16. This case asks the court to decide whether federal regulators can issue permits that are effectively broad orders not to violate water quality standards, or instead may only specify the concentrations of individual pollutants that permit holders can release into water bodies.